| Date | 24 February 1999 |
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| Judgment | Robin Ellis Limited -v- Malwright Limited, TCC 1 February 1999 |
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| The Issue | Whether joint statements of agreement between expert witnesses are binding upon the parties. |
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| Implication |
A joint statement of expert witnesses is not binding on the parties but it is nevertheless an open document which may have important consequences for the parties. |
printIn complex construction disputes the role of the expert witness is often pivotal. The courts have increasingly sought to emphasise that the expert witness owes a duty to the court to give independent and unbiased evidence, and must avoid assuming the role of advocate for his client. It is nevertheless a fact that there often becomes a point at which the expert begins to take part in the management and conduct of the case in advance of proceedings in court. The expert may therefore find that he is in effect fulfilling a dual function, to his client and to the court, and it is therefore crucial that he has a highly developed understanding of the implications of his actions. New Rules of Court which will come into force in April of this year as a consequence of the reforms of Lord Woolf will place increased emphasis on this matter. The case of Robin Ellis Limited-v-Malwright Limited gives a timely reminder of certain crucial points particularly in relation to "without prejudice" agreements made between experts. His Honour Judge Bowsher QC had given an order in the usual form that experts were to meet on a 'without prejudice' basis to try to narrow the issues and to agree a joint statement indicating those parts of their evidence on which they were, and those on which they were not, in agreement. Proceeding in accordance with that order the expert quantity surveyors instructed by each party had met on no less than seventeen occasions and had exchanged correspondence "without prejudice" in an endeavour to agree the final account. Despite this effort the experts had been unable to cover all the ground by the deadline given by the court, and accordingly both experts signed a document described as an "Interim Joint Statement". This document included a paragraph to the effect that each expert would require to reconsider the interim joint statement in the event that further information was disclosed after the date of its signature. Subsequently the parties disputed the manner in which the joint statement might be used in the further management and disposal of the case. The argument in respect of the joint statement of experts was straightforward. It was submitted that the parties do not put their dispute in the hands of an expert to settle the case. A party through his solicitor is entitled to require the expert to take instructions from the client before signing any joint statement and to make no agreement unless specifically authorised to do so. The difference between 'without prejudice' privilege in its more general form, and 'without prejudice' meetings of experts was considered. Referring to the 1988 case of Rush and Tomkins Ltd-v-GLC it was noted that the 'without prejudice rule' is a rule governing the admissibility of evidence and is founded on the public policy of encouraging litigants to settle their differences rather than litigate to a finish. In short parties should be encouraged to freely and frankly to put their cards on the table without concern that statements or offers made in the course of negotiations for settlement might be brought before the court as admissions on the question of liability. Competent solicitors will always head any negotiating correspondence "without prejudice" to make clear beyond doubt that in the event of negotiations being unsuccessful they are not to be referred to at the subsequent trial. The application of the rule is not however dependent on the use of the phrase 'without prejudice'. When turning to consider more specifically the 'without prejudice' meetings of experts, one must have in mind the Rules of the Supreme Court regarding expert evidence. RSC Order 38 rule 36 provides that no expert evidence may be adduced without leave of the court. Rule 38 allows that the court may order that there should be 'without prejudice' meetings of experts and that where such meetings take place the experts may prepare a joint statement indicating their agreement and disagreement. The new rules which will come into force in April of this year are largely a restatement of the earlier rules which were developed in recognition of the practice of Official Referees. Judge Bowsher indicated that a fine distinction therefore had to be drawn here. In ordering 'without prejudice' meetings of experts the court has a public interest that litigation should be prepared for trial and fought upon issues which have been carefully limited and refined by appropriate agreements. Thus a joint statement signed by experts is not privileged even though it might be said to be interim. It is only as an 'open' document, that is a document which may be given in evidence in court, that the joint statement can serve its purpose in limiting the issues. However, the joint statement is not binding on the parties in the same way that a contract would be binding, unless the parties have made an agreement to that effect. This is entirely consistent with the new rules which will come into force in April 1999 where at 35.12(5) it is stated "where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement". This distinction is indeed a narrow one. While the parties are not bound by the agreement reached by their experts unless they have expressly agreed to be so bound, clearly a party wishing to present a case inconsistent with such agreements will be faced with considerable difficulties. All the more reason that experts should be alive to the consequences of their actions.
CJ-9908
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